Einhorn case against Apple rests on unusual legal tactic

Nate Raymond

7 Min Read

NEW YORK (Reuters) - Hedge fund star David Einhorn wants to force Apple Inc to share some of its huge cash reserves with investors, but his lawsuit rests on a U.S. securities rule that has little legal precedent.

David Einhorn, president of Greenlight Capital, speaks during the Sohn Investment Conference in New York, May 16, 2012. REUTERS/Eduardo Munoz

Einhorn’s Greenlight Capital sued the iPad and iPhone maker in U.S. District Court in Manhattan on Thursday to try to prevent Apple from eliminating preferred stock from its charter. The suit is part of Einhorn’s bid to pressure Apple to use some of its $137 billion in cash to issue perpetual preferred shares that pay dividends to existing shareholders.

The suit contends Apple violated Securities and Exchange Commission rules that prohibit companies from “bundling” unrelated matters into a single proposal for a shareholder vote.

Establishing that Apple violated the rules could be tricky. Little to no case law exists on the question and the SEC’s own rule is relatively general with little guidance, legal experts said.

Still, James Cox, a professor at Duke University School of Law, thinks Einhorn “has a hell of good case.”

“I think he’s got Apple in the crosshairs,” he added, saying that it “strikes me as a fairly dramatic case of bundling.”

The hedge fund manager is seeking an injunction to block a February 27 shareholder vote on the proposal, saying Apple violated Section 14 of the Securities Exchange Act of 1934. Arguments are to be heard before U.S. District Judge Richard Sullivan on February 22. Apple has until February 15 to file a response with the court.

The proxy proposal at issue, Proposal No. 2, seeks to amend Apple’s articles of incorporation in three ways: by providing for majority voting for directors, establishing a par value for Apple stock and eliminating its ability to issue preferred stock.

Einhorn is represented by law firm Akin Gump Strauss Hauer & Feld, Greenlight’s long-time outside counsel. No lawyer for Apple is yet listed on the court docket and a representative declined to say who would represent Apple in the case.

On Friday, the California Public Employees Retirement System, the biggest U.S. public pension fund and owner of 2.7 million Apple shares, and influential proxy voting firm ISS Proxy Advisory Services both urged investors to vote in favor of the shareholder proposal in question.

”All shareholders should have a vote,“ Anne Simpson, CalPERS Senior Portfolio Manager and Director for Corporate Governance said on CNBC. ”We don’t want the board cutting a deal on the side with a hedge fund out of fear of a lawsuit that will cancel the annual meeting.

”This is a big issue that needs to be thought through carefully and we want the board to come to all shareholders and give a chance to have their voice heard.

ISS, which issues recommendations on how shareholders should vote on proxy proposals, generally believes the “bundling” of proposals was not in the best interest of shareholders, but supported the elimination of “blank check” preferred shares due to their potential to be misused as a takeover defense.

“Though many investors have viewed Apple’s cash holdings as excessive and wanted to see more of it returned to shareholders, that view may not be universally held: other investors may prefer to see the cash (or at least a large portion of it) deployed for investments and acquisitions,” it said in its Friday statement.

HOW WILL APPLE RESPOND?

It is unclear how Apple will respond in its formal reply to the lawsuits. On Thursday, Apple said Einhorn’s lawsuit was misguided and that adoption of Proposal No. 2 would not preclude preferred share issuances in future.

“Currently, Apple’s articles of incorporation provide for the issuance of ‘blank check’ preferred stock by the Board of Directors without shareholder approval,” Apple said. “If Proposal #2 is adopted, our shareholders would have the right to approve the issuance of preferred stock.”

Einhorn, a well-known short-seller and Apple gadget fan, said in an interview with CNBC the company harbored a “Depression-era” mentality that led it to hoard cash and invest only in the safest, lowest-yielding securities.

Apple nearly went broke in the 1990s before Steve Jobs returned and engineered a sensational turnaround, with products such as the iPhone and iPad that became must-haves for consumers around the world. The company’s near-death experience has led Apple to be exceptionally conservative with its cash.

Greenlight in its complaint said it supports two of the proposals, but not getting rid of preferred stock. Einhorn deems preferred stock superior to dividends or share buybacks and has separately put forward a proposal for an issuance of Apple preferred stock with a perpetual 4 percent dividend.

But as Apple’s proxy proposal is structured, Greenlight said, shareholders have “no choice but to either vote in favor of an amendment they oppose, or against an amendment they support.”

Few lawsuits have ever been filed challenging proposals under the rules, a situation some legal experts attributed to the normally passive nature of shareholders.

“In most cases you’re not going to get a lot of complaining about bundling,” said Brian Slipakoff, special counsel at law firm Duane Morris in Philadelphia.

In one of the few related lawsuits, the 2nd U.S. Circuit Court of Appeals in New York in 1999 recognized an implied private right of action by shareholders suing over alleged anti-bundling rule violations.

That precedent could back Einhorn in his legal standing to bring the case. The appeals court ruling was cited by Greenlight in additional court papers filed late on Thursday.

Francis Vasquez, a lawyer with the law firm White & Case who is not involved in the case, said Apple might argue that because the stockholder proposals in Proposal 2 are all amendments to the charter, they are properly related.

The California company has another five proposals up for a vote, which are not being challenged by Einhorn and do not involve amending Apple’s charter. Those measures focus on matters such as director elections and executive compensation.

“Apple’s first argument likely is going to be, ‘Look, these are all amendments we put in one place, they don’t have to do with the other items,'” Vasquez said.

The anti-bundling rules date from 1992. John Coffee, a professor at Columbia Law School, said the idea was to “prevent managements from bribing shareholders with a sweetener into voting for a proposal they would otherwise reject.”

The case is Greenlight Capital LP, et al., v. Apple Inc., U.S. District Court, Southern District of New York, 13-900.